IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`DAVID BOSSICK, an individual,
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`CIVIL DIVISION — ASBESTOS
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`Plaintiff,
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`No. GD 17-004690
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`V.
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`REPLY TO PLAINTIFF ’S RESPONSE TO
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`ALLIED GLOVE CORPORATION, et al.,
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`FOR SUMMARY JUDGMENT
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`DEFENDANT'S MOTION
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`Defendants.
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`Filed on behalf of Defendant,
`GARDNER DENVER, INC.
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`Counsel of Record for This Party:
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`Edward A. Miller, Esquire
`PA ID No. 58954
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`Melissa D. Cochran, Esquire
`PA ID No. 90930
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`Autumn L. Pividori, Esquire
`PA ID No. 319073
`
`Steptoe & Johnson PLLC
`11 Grandview Circle, Suite 200
`Canonsburg, PA 15317
`(724) 749-3140
`FAX (724) 749—3 143
`PA.Asbestos@steptoe-johnson.com
`
`
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`

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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`CIVIL DIVISION — ASBESTOS
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`No. GD 17—004690
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`DAVID BOSSICK, an individual,
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`Plaintiff,
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`'
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`v.
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`ALLIED GLOVE CORPORATION, et al.,
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`Defendants.
`
`REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT'S MOTION
`FOR SUMMARY JUDGMENT
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`Defendant, Gardner Denver, Inc., [hereinafter "Gardner Denver"], moves for summary
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`judgment as Plaintiff cannot sustain his burden of proof to show that he inhaled asbestos fibers
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`shed from a product manufactured, distributed or supplied by Gardner Denver, and therefore
`cannot prove that any such alleged exposure was a proximate cause of his development of
`asbestosis.1
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`David Bossick was a union pipefitter/steamfitter from 1966 until 1994 working at
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`numerous commercial and industrial sites including the Bruce Mansfield power station. As to
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`Gardner Denver, Plaintiff alleges that he was exposed to Gardner Denver pumps located at the
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`Bruce Mansfield power station. However, Plaintiff’ s evidence fails to prove that Mr. Bossick
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`ever worked on or around anyone repairing a Gardner Denver pump. As a result, Plaintiff cannot
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`prove that he had frequent,
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`regular, and proximate exposure to any respirable asbestos
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`manufactured by or associated with a Gardner Denver product. Therefore, Plaintiff cannot prove
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`that such an exposure related to Gardner Denver was a substantial contributing factor in his
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`development of asbestosis. Accordingly, Gardner Denver, Inc. is entitled to summary judgment
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`as a matter of law.
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`I.
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`FACTUAL BACKGROUND
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`David Bossick was deposed in this matter, and he did not offer any testimony indicating
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`that he worked with or around a Gardner Denver pumps over the course of his career. Instead,
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`Plaintiff relies on the following in an attempt to prove exposure related to Gardner Denver: (1)
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`lGardner Denver previously filed a Motion for Summary Judgment and Supporting Memorandum of Law, which it
`incorporates herein by reference.
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`

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`the prior, unrelated deposition testimony of George Smith (ii) Gardner Denver’s Answers to
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`Interrogatories in the Bell case, and (iii) the deposition testimony of corporate representative
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`John D. Kendall.
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`a) Deposition testimony of George Smith
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`From 1968 to 2004, George Smith worked as a boilermaker at various facilities in
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`western Pennsylvania, Ohio, and West Virginia. S_ee, Plaintiff’s Exhibit I—6 Volume 1 at pp. 21-
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`22. Among those sites, Mr. Smith worked at Bruce Mansfield power station in Shippingport, PA,
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`at various times throughout the 1970s. Q at p. 133. More specifically, he recalled working there
`in the 1974-1975 time frame for at least two years for both foster Wheeler and Townsend and
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`Bottom. Li. at p. 133, 135. He worked in both Units 1 and 2 during new construction. Li. at p.
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`134. Mr. Smith recalled an outside contractor connecting pumps to piping using gaskets. I_d, a tp.
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`138.
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`Initially, Mr. Smith did not mention Gardner Denver in connection with the Bruce
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`Mansfield Station. Later in the deposition, Mr. Smith was showed a list of defendants named in
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`the Complaint by Plaintiff’s counsel including Gardner Denver. E at p. 159, 175. It was then
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`that Mr. Smith indicated that he recalled Gardner Denver pumps in the basement at Bruce
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`Mansfield, which was worked on by pipefitters. I_d. at p. 175.
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`Mr. Smith recalled that Gardner Denver pumps were used for water, solvents, and water
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`conditioning at Bruce Mansfield. I_d. at p. 41, 44. He associated asbestos packing with the pumps
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`at Bruce Mansfield.
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`b) Gardner Denver’s Responses to Interrogatories in the Bell case
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`In the Herbert C. Bell= III and Leona Bell, V. Alliance Machinery, Inc., et a1. case filed in
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`Beaver County, PA, Gardner Denver issued answers to Plaintiff’ s Interrogatories. In its answers,
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`Gardner Denver indicated that
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`incorporated another manufacturer’s asbestos-containing
`it
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`components for use in its products. See, Plaintiff’s Exhibit L—l. These responses were issued in a
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`wholly different and unrelated case, which did not involve the work site at issue.
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`c) Deposition testimony of copporate representative
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`Gardner Denver corporate representative, John Kendall, was deposed in a previous, unrelated
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`asbestos case regarding Gardner Denver equipment. There is no evidence establishing that any of
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`the equipment discussed by Mr. Kendall was ever present at any of Mr. Bossick’s work sites.
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`II. ARGUMENT
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`a) Plaintiff’s evidence is not sufficient to prove that he was ever in close proximity
`to, on a freguent and regular basis, any repairs being made to any Gardner
`Denver pumps that caused him to be exposed to any respirable asbestos dust.
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`In order to survive a motion for summary judgment, the Plaintiff must provide evidence
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`which establishes that he worked with sufficient frequency, proximity, and regularity to asbestos
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`containing components of a Gardner Denver pumps so that a jury would be able to make the
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`necessary inference that the asbestos containing components of a Gardner Denver air pumps
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`contributed to the development of his colon cancer. _S_e_e Gregg V. V-J Auto Parts Co., 943 A.2d
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`216 (Pa. 2007). As such, Plaintiff must present evidence establishing that Plaintiff was in close
`proximity on a frequent and regular basis while someone was repairing or working with the
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`asbestos containing components of a Gardner Denver pumps that would have released respirable
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`asbestos so that a reasonable inference can be made that he inhaled asbestos fibers shed from a
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`Gardner Denver pump.
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`Mr. Bossick was deposed in this matter and offered no testimony regarding Gardner
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`Denver. Instead, Plaintiff first rely upon the prior testimony of George Smith who was deposed
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`as a co-worker in an unrelated asbestos case and offered no testimony regarding Mr. Bossick
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`working on or around the asbestos-containing components of a Gardner Denver pumps. When
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`asked about his work at Bruce Mansfield, Plaintiff could not recall even the decade he worked at
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`Bruce Mansfield. Furthermore, he testified that he worked at Bruce Mansfield less than five
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`times for one to three months. He could not provide any information about the kind of work or
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`Where he was working in the facility.
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`Based upon the evidence of record, a jury would have to engage in unfettered speculation
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`to conclude that simply because Plaintiff worked at Bruce Mansfield at some unknown time for
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`some unknown duration that he worked with the necessary frequency, regularity and proximity
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`to Gardner Denver pumps present at Bruce Mansfield. Pennsylvania law is clear ~ “a plaintiff
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`cannot survive summary judgment when mere speculation would be required for the jury to find
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`in the Plaintiff’s favor.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (2014) m Juliano V.
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`Johns-Manville Com. 611. A.2d 238, 239 (1992).
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`Additionally, the Pennsylvania Superior Court recently addressed product-identification
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`testimony in a case where the plaintiff relied partly on the exposure testimony of four other
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`workers. Sterling v. P & H Mining Equip, Inc., 113 A.3d 1277, 1282 (Pa. Super. 2015).
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`In
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`Sterling, the court noted that the while the other workers had testified about their own exposures
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`in their own cases their testimony "did nothing to show that [the plaintiff] inhaled dust" from the
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`equipment at issue. Li. at 1282. Consequently, the court found such testimony insufficient to
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`establish the "frequency, regularity, or proximity of [the Plaintiff‘s] own alleged exposure." I_d_,
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`at 1283. Plaintiff is relying on the same type of inadequate evidence in this case. Mr. Smith was
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`deposed regarding his own exposure and the exposure of another co-worker and not Plaintiff.
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`There is no evidence of record to prove that Plaintiff knew Mr. Smith or vice versa let alone that
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`these men worked with or in proximity of each other at the Bruce Mansfield plant. Accordingly,
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`Plaintist evidence in this case is not sufficient to prove that Plaintiff was ever in proximity of
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`— on a fiequent and regular basis — repair of Gardner Denver pumps that involved the release
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`of any asbestos fiber that he could have breathed.
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`b) Gardner Denver cannot be held liable for asbestos replacement partszgaskets
`and packing materials—that it did not manufacturer, distribute or supply.
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`Additionally, in Pennsylvania, product manufacturers are not liable for harms caused by
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`component parts that the manufacturer did not make or supply. Toth v. Economy Forms Cogp.,
`571 A.2d 420 (Pa. Super. 1990). Some courts have extended this rationale to asbestos cases,
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`finding that product manufacturers are not liable under theories of strict liability or negligence
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`for harms arising from asbestos-containing component parts that the defendant did not make,
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`supply, or distribute. Under this commonly called "bare metal defense," Gardner Denver cannot
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`be held liable for asbestos-components that that it did manufacture, supply, or distribute for use
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`in its products.
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`In Toth, the Pennsylvania Superior Court found that the defendant, the manufacturer of a
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`scaffolding system, was not liable when a wooden plank attached to the scaffolding gave way,
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`leading to the death of the plaintiff-decedent. 571 A.2d at 423. The wooden plank was made and
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`sold by another party. Li. at p. 422. The court explained that "Pennsylvania law does not permit"
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`a court to hold a defendant strictly liable for a component part that it neither makes nor supplies.
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`I_d. at p. 423.
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`The court likewise rejected Plaintiffs attempt to impose liability in negligence for failure
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`to provide proper field services, including appropriate warnings. 1d; In so doing, the court
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`explained that Plaintiff did not offer any evidence that the manufacturer breached a duty to
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`ensure proper use of the wooden plank. I_d. Instead of suing the manufacturer of the scaffolding
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`system, the court held that the Plaintiff "must look to the lumber supplier" that actually made the
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`faulty wooden plank. I_d. at p. 422.
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`Applying the logic of "Pith, several Pennsylvania Trial Courts have granted defendants'
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`motions for summary judgment based upon their reasoning that "bare metal" manufacturers
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`should not be liable for asbestos-containing component parts that were made by another
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`company. In Kolar v. Buffalo Pumps, Inc., Plaintiff asserted that Mr. Kolar worked on pumps
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`and steam traps with asbestos-containing gaskets while employed in the maintenance department
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`of a wastewater plant. Kolar, 15 Pa. D. & C. 5th 38, 46 (Phila. Ct. Com. P1. 2010). Plaintiff
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`alleged that this work contributed to Mr. Kolar's development of mesothelioma. fl
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`However, the Trial Court found Plaintiff offered insufficient evidence that Mr. Kolar ever
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`worked on a pump with original, asbestos-containing parts. E Moreover, the court noted that
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`"Plaintiff provided not a scintilla of evidence" that asbestos components were required by the
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`manufacturer. IE1.- at p. 48. In granting summary judgment to the defendant pump manufacturer,
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`the Trial Court approvingly cited to cases from other jurisdictions which have concluded that a
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`manufacturer should not be liable for asbestos-containing parts under similar circumstances. I_d.
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`at 49 (citations omitted). The court further explained that:
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`[A] manufacturer cannot be liable for injury caused by an asbestos
`part installed onto its product, where it does not make, supply or
`sell said part, where [the] product does not require the asbestos part
`to function properly, and where [the] manufacturer does not call
`for use of said part.
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`I_d. at p. 45-46.
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`Other trial courts have granted summary judgment based on the premise that "bare metal"
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`manufacturers are not be liable for harms caused by component parts that they did not make or
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`supply. SE Smith v. Ford Motor Co., 35 Pa. D & C 5th 435 (Phila. Ct. Com. P1. 2014) (granting
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`summary judgment to defendant car manufacturer and car parts supplier for automotive parts that
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`the defendants did not manufacture or supply); Dimmick v. P&H Mining Eguip. Inc., 2012 Phila.
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`Ct. Com. Pl. LEXIS 184, *7 (granting summary judgment for defendant crane manufacturer that
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`did not manufacture, supply, sell, or require use of asbestos-containing brakes); Milich v. Anchor
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`Packing Co., 2009 Butler Cnty. Ct. Com. Pl. No. A.D. 08-10532 (March 16, 2009) (unpublished)
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`(granting summary judgment to defendant valve manufacturer after finding no evidence that
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`plaintiff was around work on a valve that contained its original packing material or that
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`defendant supplied replacement packing (citing MD.
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`Federal courts in Pennsylvania have likewise limited a manufacturer's liability for
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`asbestos-containing component parts under certain circumstances. Most recently, the bare metal
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`defense was thoroughly addressed in Schwartz v. Abex Corporation, in which the district court
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`extensively reviewed the case law and discussed the social policy considerations inherent in
`product liability cases. 2015 US. Dist. LEXIS 68074 (ED. Pa. May 27, 2015). In Schwartz, the
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`defendant was a manufacturer of airplane engines with external
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`insulation that contained
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`asbestos. E at p. 6. Plaintiff’s decedent, who died from mesothelioma in 2006, had worked as a
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`mechanic and crew chief at two Air Force bases in Pennsylvania from 1957 to 1967. Li.
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`While conceding that the defendant neither made nor supplied the asbestos-containing
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`insulation that was used on its engines, plaintiff argued the manufacturer was still liable under a
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`duty to warn because it could foresee that these materials would be used on its engines. Q The
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`court acknowledged that
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`the Pennsylvania Supreme Court has not addressed a product
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`manufacturer's liability under these circumstances. In predicting Pennsylvania's position, the
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`court found that a product manufacture could not be held strictly liable for component parts that
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`the manufacturer neither made nor supplied. Li. at pp. 2, 71.
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`Additionally, the court held that a product manufacturer could not be held liable under
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`negligence for failure to warn unless it (i) knew that an asbestos-containing component part of
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`that type would be used with its product, and (ii) knew at the time it placed its product into the
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`stream of commerce that there were hazards associated with asbestos. Li. at pp. 2—3. In distinctly
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`addressing both theories of liability, the court made clear that strict liability is foreclosed to a
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`plaintiff when the product manufacturer did not make or supply the component part. Q at pp. 2,
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`74—75. While leaving the door open to negligence—based claims, the court emphasized that ”a
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`product manufacturer is not liable in negligence for injury arising from all foreseeable use of
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`asbestOS-containing component parts [,]" as this "would create an undue burden on those product
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`manufacturers." Ld. at p. 86.
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`Of note, the district court in Schwartz ultimately granted summary judgment for the
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`defendant on both the strict liability and negligence claims. Li. at pp. 106-07. While the decision
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`is instructive in providing a review of relevant case law, its holding is not binding on this Court.
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`As the Schwartz court acknowledged, the Pennsylvania Supreme Court has yet to address the
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`issue.
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`Nonetheless, the highest courts in several other jurisdictions have embraced the bare
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`metal defense and found that product manufacturers cannot be held liable for component parts
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`that they did not make or supply under theories of strict liability or negligence. E O'Neil v.
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`Crane Co., 266 P.3d 987 (Calif. 2012) (finding pump manufacturer had no duty to warn of
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`dangers from asbestos-containing gaskets and packing that it did not make or supply); Simonetta
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`v. Viad Corp, 197 P.3d 127 (Wash. 2008) (finding that an evaporator manufacturer had no duty
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`to warn of asbestos components that were later added to its product). In addition, the Sixth
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`Circuit has held that a product manufacturer cannot be held responsible under maritime law for
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`asbestos-containing material
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`that
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`"was
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`incorporated into its product post-manufacture."
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`Lindstrom V. A—C Prod. Liab. Trust, 424 F.3d 488, 497 (6th Cir. 2005).
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`In this case, Plaintiff has not shown that Gardner Denver manufactured or supplied any
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`asbestos-containing materials that were associated with its pumps. In fact, Gardner Denver’s
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`Responses to Interrogatories as well as the testimony of John Kendall cited by Plaintiff indicates
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`that Gardner Denver incorporated asbestos-containing components of other manufacturers.
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`Under m, Gardner Denver cannot be held liable for harms caused by another manufacturer's
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`product. As such, Gardner Denver had no duty to warn of potential dangers of replacement
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`component parts that were manufactured by another party, and Gardner Denver is entitled to
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`summary judgment on this basis.
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`III.
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`CONCLUSION
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`As explained above, Plaintiff cannot prove that Plaintiff ever worked on or around any
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`asbestos-containing product manufactured, supplied, or distributed by Gardner Denver. There is
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`no genuine issue of material fact here; Plaintiff have failed to submit any evidence placing
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`Plaintiff in proximity on a frequent and regular basis to asbestos containing components of a
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`Gardner Denver pumps being repaired in a manner that thereby released respirable asbestos
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`fibers. Therefore, Plaintiff cannot as a matter of law prove that Plaintiff ever inhaled any
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`asbestos fibers shed from a Gardner Denver product and cannot sustain their claims.
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`WHEREFORE,
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`for
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`the
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`foregoing reasons, Defendant, Gardner Denver,
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`Inc.,
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`respectfully requests that this court grant its Motion for Summary Judgment and dismiss with
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`prejudice, all claims asserted against it, including cross claims.
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`Respectfully submitted,
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`STEPTOE & JOHNSON PLLC
`
`By: /s/ Autumn L. Pividori
`Edward A. Miller, Esquire
`Melissa D. Cochran, Esquire
`Autumn L. Pividori, Esquire
`
`-
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`Attorneys for Defendant,
`GARDNER DENVER, INC.
`
`
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`

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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the foregoing REPLY TO
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`PLAINTIFF’S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY
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`JUDGMENT was sent
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`this 8th day of December, 2017, Via e-mail
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`to Plaintiff’s counsel
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`identified below and to all known defense counsel.
`
`Holly L. Deihl, Esquire
`Goldberg, Perksy & White, RC.
`11 Stanwix Street, Suite 1800
`Pittsburgh, PA 15219
`pghgrounggpwlawcom
`
`STEPTOE & JOHNSON PLLC
`
`By:
`
`/s/ Autumn L. Pividori
`Edward A. Miller, Esquire
`Melissa D. Cochran, Esquire
`Autumn L. Pividori, Esquire
`
`Attorneys for Defendant,
`GARDNER DENVER, INC.
`
`
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`